COSPLAY and Intellectual Property: Navigating the Legal Landscape
Cosplay has become popular again as a form of pop culture activity since the COVID-19 pandemic restrictions ended. Malls in all corners compete to host various events featuring Cosplayers to increase visitors. But not many people know that Cosplay is an activity on the “edge of the cliff” when viewed from an Intellectual Property (IP) perspective. How come?
Definition of Cosplay
Taken from the words “Costume & Play,” Cosplay is the activity of playing using character costumes, whether from films, TV series, video games, comics, or characters from other popular culture. People who carry out Cosplay activities are called Cosplayers. We can easily find them at pop culture-based events, such as “Comic Conventions,” dominated by IP from America, or “Anime Conventions,” dominated by IP from Japan.
Cosplayers proudly wore their favorite character costumes at these events, socialized with fellow fans, or participated in competitions. Yes, Cosplay is also regularly contested with quite big prizes. This is one of the factors why the number of Cosplayers continues to increase. Because Cosplay has become a place to earn money, increase popularity, and expand friendships.
The rise of Cosplay activities has also given rise to various derivative professions. Starting from Costume Makers with their respective specifications, whether for costumes made from cloth, foam, resin, or leather. Then, the Prop Makers make costume-supporting equipment such as armor, swords, or other weapons. Also, trained Performers with acrobatic or martial arts skills are specifically hired to play certain characters. Then we have Cosplay Judges who are staffed by “seniors” with high-flying hours and have won many competitions at home and abroad. Unfortunately, all of these professions receive payment for using characters without the permission of the creator or owner of the character. This factor causes Cosplay to become an activity on the edge of Intellectual Property violations.
Every Popular Character is Copyrighted
Every character, realized in various media, whether considered popular or only known to a few people, is included in the “Creation.” According to Article 1 of the Copyright Law, this Creation is a creative work in science, art, and literature produced based on inspiration, ability, thought, imagination, talent, skill, or expertise expressed in concrete form.
The Creator is given exclusive Economic Rights, so only the Creator has the right to obtain financial benefits, including commercial use of his Creation. It is also important to remember that the Exclusive Right to Copyright arises automatically based on the Declarative Principle after a work is realized in actual form, without the need to go through a registration process as with Trademarks, Patents, or other Intellectual Property.
In other words, if another party wants to use or utilize a Creation commercially, they must first obtain permission from the Creator, as regulated in Article 9, Paragraphs 2 and 3 of the Copyright Law.
Sanctions for Violations
Unfortunately, the various professions derived from the Cosplay activities above can specifically be categorized as forms of Copyright Infringement. For Costume and Prop Makers violating Article 9 Paragraph 1 letters (b) and (d) regarding the Duplication of Works in all their forms, as well as Adaptation and Transformation of Works; Meanwhile, Event Organizers who invite costumed Performers or Cosplay Judges may be deemed to have violated Article 9 Paragraph 1 letter (f) regarding Creation Performances. Criminal sanctions regulated in Article 113 of the Copyright Law as follows:
- Costume & Prop Maker:
Prison max. 4 years and/or fine max. one billion rupiah.
- Cosplay Event Organization:
Prison max. 3 years and/or fine max. 500 million rupiah.
- Costume & Prop Maker:
The sanctions given to costume makers could be more severe if they deliberately sell themselves as sellers of costumes made from characters with registered Trademarks and/or parts of their costumes take designs from products with registered Industrial Designs. So he could be subject to sanctions from the Trademark and Industrial Design Law simultaneously!
But fellow Cosplayers or all related derivative workers don’t need to worry because there are restrictions or exceptions for actions that are still not considered Copyright Violations. Namely, if the duplication and/or performance is free of charge, provided that it does not harm the reasonable interests of the Creator.
In other words, if the Cosplay activity is designed as a paid show where the audience must buy tickets, or Brand X pays a Cosplayer complete with the costume to promote a product from Brand X, then it is inevitable that there has been a Copyright Violation.
However, because the criminal provisions on Intellectual Property are a complaint offense, there must be a direct objection from the Creator to all activities carried out by the Cosplayer and any derivative work thereof. What can happen is, even in a free Cosplay show or free costume making, if the Creator finds out, objects, and does not give permission for whatever reason, a lawsuit can still be filed.
Cosplay Practice in the USA and Japan
Even though it is considered a fun activity without limits and upholding freedom of expression, Cosplay still has to comply with several pretty strict rules. For example, if done privately, Cosplayers must abide by the norms of decency; neither their costumes nor their behavior must disturb public order. In this personal activity, Japan has stricter rules than America. In Japan, it is impossible to find people busking in character costumes in the middle of the street. Apart from disturbing public order, it could be considered to damage the image of the character he presents.
- Street Performers
In America, Cosplayers are categorized as Street Performers. They are free to express themselves even if there is no event, but the area is minimal if they take to the streets or public spaces for activities. A famous example of this restriction is the streets painted Light Blue around New York’s Times Square. If they act outside that area, they can be immediately arrested by the police.
Indonesia also has regional regulations that prohibit busking or asking for money in any costume in public places. For example, in Jakarta, Regional Regulation Number 8 of 2007, Article 40, provides for the threat of imprisonment for 10 to 60 days and/or a fine of IDR 100 thousand to IDR 20 million for those who ask or give for money.
- International Cosplay Competition
If the event is a large scale, such as the World Cosplay Summit (WCS), held in Nagoya, Japan, every year, the organizers collaborate with the local government and make this event a successful tourism activity that brings in 300 thousand participants from local and abroad. However, area restrictions are still in place, and if you want to participate in the competition, participants can only use characters from Intellectual Property originating from Japan; they cannot use Disney or Star Wars characters originating from America.
The emphasis is different for the “Masquerade On-Stage Costume Competition,” aka the Cosplay Competition held at San Diego Comic-Con (SDCC), America’s biggest pop culture event. In this competition, participants can choose any character from international IP, including characters they create themselves. However, 75% of their costumes must still be homemade and can only be used specifically at the competition, which lasts around 2 hours. It should not be used before or after.
This strict regulation is vital as a form of organizer responsibility for the presence of popular characters without violating copyright. Outside of competitions, Cosplay activities at WCS and SDCC can only be carried out in limited areas, with strict costume checks, and do not endanger other visitors.
- Costume Maker Raid
Regarding law enforcement of copyright for costume making, Japan is the champion. Since the official performance of a character has become big business, the use of character costumes without permission can easily be seen, including illegal sales activities. Makers and sellers of costumes, whether made by copying costumes sold to the public or made from scratch, must be prepared to face law enforcement.
Suppose you are a skilled costume maker in Japan and want to make costumes, statues, or anything related to popular characters. In that case, you only have three choices: Keep it for yourself, work for a license holder and get paid officially, or make it for the public but don’t receive payment, aka given for free!
Best Move for Cosplay Stakeholders
By considering all applicable legal provisions, we can suggest the following steps for fellow Cosplay activists:
- Costume Maker
Fellow Costume Makers must accept the most formidable challenge. Because when the costumes you make are very similar to the original, mainly if they are sold using the name of a registered character, the potential for infringement is not only Copyright but also Trademark and Industrial Design Rights.
So, we recommend you complete your skills by obtaining official permission through a License Agreement to market your work more widely. By getting official approval from the Creator, an “official” label can be obtained, and the selling price can be increased.
- Cosplay Organizers
We always keep reminding you that permission is not only for crowds but permission to use characters from the creator is also very important, especially if the event presents popular characters as the main attraction.
For Cosplay competitions, it can only be narrowed down originating from specific IPs. For example, a Cosplay competition for Ultraman characters was held by establishing an official collaboration with Tsuburaya as the Creator. In this way, the competition will look more credible; it will also be maximized in terms of awareness and engagement with the fan community. Plus, the winners of this official competition can become a bridge to more significant regional and international collaboration events.
It’s time to change your mindset! Playing around with costumes from popular characters is fun, but excessive commercialization can be dangerous. Ensure that in all the events you participate in, the organizers are aware of the law and do not involve you in borderline activities. Start building a network by getting to know the Creator of the character you like, find out who the license holder is, introduce yourself, and get an official job.
It is not impossible; with your performance skills, the next person to invite you will be the Creators or license holders of the characters you like. This way, you can perform optimally and feel comfortable.
- Original Character
The safest way is Cosplay by presenting original characters that have never existed before, namely your work. You can do this by making an original costume with a unique design that combines the best elements of your favorite characters. Then, create unique movements and moves, making this new character a character many people like.
From the perspective of event organizers, they can also play an active role by presenting more competitions in the Original Character category. In this way, more new creators can grow, which is not impossible in the future, and their work becomes very popular with a fan base worldwide.
Cosplay activities, as a popular culture, are indeed fun. By understanding the regulations and all the risks, we hope that fellow Cosplay activists will not become afraid but more competent in taking further steps in the future. One of them is encouraging more Original Characters so that Indonesia can be known as a producer of characters worth cosplaying, no less than Japan and America.
If you need further information regarding Cosplay and Copyright or the process of protecting Original Characters, don’t hesitate to make us your partner in exploring the Intellectual Property business.